Top Uses of Executive Privilege: Washington, Nixon, Obama

By KYLE BLAINE

June 20, 2012

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President Obama today invoked executive privilege to shield documents related to the "Fast and Furious" gun walking scandal from a congressional investigation, marking the first time his administration has invoked the right and the 25th time it's been used since 1980.

In response, a House committee voted Wednesday along party lines to hold Attorney General Eric Holder in contempt of Congress. The White House dismissed the proceedings as "political theater."

Louis Fisher, author of "Politics of Executive Privilege," questioned the legitimacy of the administration's claim to executive privilege.

"If it had been legitimate, I think they could have raised it a year ago," Fisher said. "It doesn't look good to work with a committee for more than a year and then to pop out that this is executive privilege."

The use of executive privilege to protect internal discussions and deliberations can be traced back to George Washington. However, it was the Supreme Court's 1974 ruling in the Nixon Watergate scandal that established executive privilege as a legal right and set forth its appropriate uses. Since Nixon, executive privilege has been used in every administration, although some presidents invoked the power more frequently than others.

Here is some history: six top cases of executive privilege since America was born.

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George Washington

The early groundwork for an executive claim to secrecy was laid by the nation's first president, in response to the first investigation mounted by the House of Representatives. It came after the U.S. Army's defeat by American Indians in the Battle of the Wabash in 1791 in what is now Ohio. President George Washington and his aides decided not to hand over any papers or materials Congress requested, arguing that the branches of government ought to be separate. Washington eventually relented and provided Congress with copies of the documents it requested.

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Dwight D. Eisenhower

President Dwight D. Eisenhower cited executive privilege, then only a concept in precedent, to prevent the Sen. Joseph McCarthy's communist-hunting committee access to transcripts between Army officials and administration officials related to the Army-McCarthy hearings in 1954.

The administration argued that the executive branch needed to be able to have candid exchanges when discussing important issues.

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Richard Nixon

The most famous invocation of executive privilege -- and the reason its assertion by modern presidents is typically followed by intense scrutiny -- occurred under President Richard Nixon in 1973 and 1974, during his attempt to shield Oval Office recordings from a congressional investigation into the Watergate scandal.

The standoff made its way to the Supreme Court, which, in an 8-0 decision, established the president's legal right to executive privilege, but ruled that the importance of the Watergate investigation outweighed Nixon's claim.

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Ronald Reagan

Ronald Reagan invoked executive privilege three times during his tenure as President, and is often credited with ushering in a new era of government secrecy by limiting Freedom of Information Act requests and imposing severe punishments on whistleblowers.

However, during the Iran-Contra scandal, Reagan waived executive privilege, making his documents, diaries and entire staff available for congressional scrutiny.

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Bill Clinton

President Bill Clinton claimed executive privilege a record 14 times, most notably during the Monica Lewinsky sex scandal, when Clinton tried to block investigators from asking his aides to testify. A Federal judge struck down Clinton's claim, ruling that administration aides could be called to testify before Congress.

Clinton came under scrutiny for what many saw as a misuse of executive privilege to protect him and his aides form embarrassment when no national security or other public interest was at stake.

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George W. Bush

President George W. Bush claimed executive privilege six times, including a notable case in which Bush tried to block a General Accounting Office investigation into Vice President Dick Cheney's meeting with energy executives.

Bush also claimed executive privilege in 2007 to block a congressional subpoena of his aide Karl Rove, who was called to testify in a case in which several federal prosecutors were fired. The administration asserted Rove was constitutionally immune from compelled congressional testimony.

Critics of the Bush administration said at the time that the use of executive privilege should not exempt the President and his staff from participating in investigations that do not threaten the public interest.